The Wisconsin Supreme Court endorsed a blatant power grab by the Republican-controlled state Senate on Wednesday, using a case focused on technical bureaucratic matters to endorse a scheme to seize control of state boards and commissions by declining to confirm appointments from Democratic Gov. Tony Evers.
In a 4-3 decision, the court’s conservative justices ruled that Fred Prehn, a GOP member of the Wisconsin Natural Resources Board, could remain in his position despite the fact that his term ended more than a year ago, simply because the state Senate has not yet confirmed the replacement appointed by Evers.
Prehn refused to leave the role at the scheduled end of his term in May 2021, arguing that it is not technically vacant until his replacement is confirmed. The Republican-controlled legislature, meanwhile, is not confirming many of Evers’ appointments, creating an inescapable Catch-22 that effectively robs the Democratic governor of his appointment power.
The state Supreme Court majority sanctioned this scheme Wednesday, affirming a lower court ruling that the expiration of Prehn’s term by itself “does not create a vacancy” under state law, and that Evers and Wisconsin Attorney General Josh Kaul cannot seek his removal.
The ruling will have substantial impacts on Wisconsin environmental policy, allowing a board that creates and shapes the implementation of such rules to remain in control of its current Republican majority.
More broadly, it will provide another boost to Wisconsin Republicans’ efforts to use their state legislative majorities to exert unprecedented levels of power over the state, as they seek to erode Evers’ authorities on nearly every front. In effect, Republicans can ensure GOP control of state boards and commissions in perpetuity by refusing to leave appointed positions when their terms expire, as long as the state Senate also declines to confirm their replacements.
It’s the latest example of how state legislative Republicans, who have consolidated and expanded their majorities with aggressive rounds of gerrymandering during the previous two redistricting cycles, have assumed near total control of Wisconsin, despite the election of a Democratic governor in 2018 and the narrow partisan split of the state as a whole.
“Today, I remind the Wisconsin Supreme Court and the Republican Party of this state that we do still live in a democracy, a very basic function of which is the peaceful and respectful transfer of power, even — and most especially — when you lose,” Evers said in a statement after the ruling. “Today’s decision continues to underscore the erosion of democratic institutions at the hands of Republicans in this state. It’s wrongheaded, it’s shortsighted, and it’s politics at its most dangerous.”
In Wednesday’s decision, the conservative justices leaned on a literal reading of state law and prior state Supreme Court decisions. The court’s liberal justices criticized the ruling, calling it “absurd” and arguing that it would allow political appointees who are allied with state Senate leaders to effectively determine the length of their terms.
“The majority’s absurd holding allows Prehn’s six-year term on the Board of Natural Resources — which expired over a year ago — to last for as long as Prehn wants it to, so long as he refuses to leave and the senate doesn’t confirm a successor nominated by the governor,” Justice Rebecca Dallet wrote in the minority’s dissent. “Allowing Prehn to continue serving in office indefinitely makes him the final authority on whether he remains in office — not the legislature, which specified by statute that his term expired over 13 months ago, and not the governor, who the legislature gave the authority to nominate a replacement.”
“One unelected official should not be able to dictate his term in office over the will of the people’s elected representatives,” Dallet wrote, adding that the decision “steers our state’s government directly into disorder and chaos” by “threatening the fragile separation of powers central to its functions.”
Evers appointed Prehn’s apparent successor to the Natural Resources Board in April 2021, just weeks before Prehn’s six-year term was supposed to end. Sandra Naas, Evers’ choice to replace Prehn, has attended board meetings for more than a year, but has no power to vote as part of it. Prehn has denied that his desire to remain on the board is rooted in partisan interests, the Milwaukee Journal Sentinel reported in April, although his replacement with Naas would flip the composition of the board’s majority from GOP appointees to Democratic picks.
Kaul, the Democratic attorney general, filed a lawsuit seeking to force Prehn to abandon the seat last August.
The ongoing dispute between Evers and the legislature has been aided by Wisconsin’s “unusually fluid system of separation of powers,” said Howard Schweber, a University of Wisconsin-Madison political science professor.
“Combined with a very stark partisan division between the branches — itself the result of a highly successful Republican gerrymander — the result is a nearly constant state of conflict between Evers and the legislature over various issues of executive power as the legislature tries to prevent Evers from pursuing his agenda,” he said.
The state Supreme Court has been a useful ally for the Wisconsin GOP throughout that fight.
Last year, it resolved a dispute between Evers and the legislature by approving a heavily gerrymandered redistricting plan that further tilted the balance of state legislative maps in favor of Republicans, who already enjoyed severely disproportionate advantages: In 2012’s state legislative races, for instance, Republican candidates garnered 46% of the statewide vote but won 60% of the seats in both the state House of Representatives and the state Senate. In 2018, when Evers narrowly defeated former Gov. Scott Walker, the GOP won just 45% of votes cast in state Assembly elections, but took 65% of its seats.
The new maps are expected to further skew the legislature in favor of the GOP, which has consistently attempted to use its existing majorities to curb Evers’ authority.
Immediately after his 2018 victory, the legislature used a special session to pass new laws reducing his powers in numerous ways, a plot that GOP state House Speaker Robin Vos acknowledged was meant to ensure Evers could not “enact policies that are in direct contrast to what many of us believe in.”
A judge blocked that attempt, but Vos and the GOP later stripped Evers of most of his emergency powers during the COVID-19 pandemic. This year, the legislature took the first step toward the approval of a constitutional amendment that would curb Evers’ powers over funds the state receives from the federal government, an effort that resulted from a dispute over federal aid related to the pandemic.
The state Supreme Court aided those efforts as well, repeatedly ruling that executive orders Evers issued during the pandemic abused his emergency powers. It sided with the legislature in one such ruling, after GOP lawmakers sued to block an executive order that sought to postpone the state’s April 2020 primary elections because of the pandemic.
That ruling, Marquette University law professor Edward Fallone wrote at the time, had “nothing to do with the Rule of Law,” a proper reading of which, he argued, would have resulted in “a contrary result.”
Prehn said in a statement that he would continue serving on the board “until my successor is duly confirmed by the Senate,” Wisconsin Public Radio reported.
Republicans appear to have no intentions of replacing him any time soon: They ended this year’s legislative session in March without holding a confirmation vote on Evers’ appointment to replace him.